TN 8 (10-00)

Citations:

Social Security Act, as amended, section 1621; Public Law (P.L.) 104-193, Section 421; P.L. 104-208, Section 552; P.L. 105-33, Section 5571

A. Background

1. Legislative Background

On 8/22/96, P.L. 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("Welfare Reform Act of 1996") was enacted. This legislation changed sponsor-to-alien deeming policy for aliens whose sponsors sign the legally enforceable affidavits of support required by section 213A of the Immigration and Nationality Act. The Attorney General of the United States was charged with developing this new, legally enforceable affidavit of support.

The deeming provisions in the Welfare Reform Act of 1996 were subsequently amended by P.L. 104-208, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("Immigration Reform Act of 1996"), enacted on 9/30/96, and by P.L. 105-33, the Balanced Budget Act of 1997, enacted on 8/5/97.

2. Two Sets of Sponsor Deeming Rules

On 12/19/97, the Department of Homeland Security (DHS) began using a new, legally enforceable affidavit of support (INS Form I-864) with applications for immigrant visas or adjustments of status. Use of the affidavit is tied to the date the alien applied for an immigrant visa or status adjustment. If the visa or status adjustment application was filed BEFORE 12/19/97, the old version affidavit (INS Form I-134) will be used even if the alien entered the country AFTER 12/19/97.

Consequently, beginning 12/19/97, there are two sets of sponsor deeming rules in the Supplemental Security Income (SSI) program. One set of rules applies to aliens whose sponsors signed the old, unenforceable version of the affidavit of support (I-134). These cases are referred to as “old version affidavit” cases or “old version sponsor deeming” cases. They include the grandfathered aliens described in SI 00502.100 (unless such alien applied for status adjustment after 12/19/97) and other sponsored immigrants not described in SI 00502.215A.2. who applied for a visa or adjustment prior to 12/19/97. A different set of deeming rules applies to aliens whose sponsors sign the new, legally enforceable version of the affidavit. These cases are referred to as “new version affidavit” cases or “new version sponsor deeming” cases.

Keep in mind that most new alien claimants who have sponsors will not be eligible aliens for SSI purposes (see SI 00502.100). One example of a sponsored alien who could be SSI-eligible (and subject to deeming) is a sponsored legally admitted for permanent residence (LAPR) alien who is the spouse of a veteran of the Armed Forces of the United States.

3. Exceptions to the New Version Sponsor Deeming Rules

The Immigration Reform Act of 1996 established certain exceptions to the deeming rules that apply in new version sponsor deeming cases. These exceptions are referred to as the battery and indigence exceptions to deeming.

1. Under the battery exception, sponsor-to-alien deeming is suspended if:

   • a qualified alien, a qualified alien"s child, or a qualified alien child"s parent has been battered or subjected to extreme cruelty in the United States, and

   • there is a substantial connection between the battery and the need for benefits, and

   • the individual subject to such battery or cruelty does not live in the same household with the individual responsible for the cruelty or battery.

   When the battery exception is allowed, deeming can be suspended for 12 months. After 12 months, the exception can be continued ONLY under certain specified conditions. Instructions for applying this exception are still being developed.

2. Under the indigence exception, sponsor-to-alien deeming is suspended for 12 months when a determination is made that an alien would, in the absence of SSI payments, be unable to obtain food and shelter. (See SI 00502.280 for a full discussion of the indigence exception.)

B. References

• Old Version Sponsor Deeming Cases--Policy and Procedures, SI 01320.900-SI 01320.950, SI 00502.220

• New Version Sponsor Deeming Cases--Policy and Procedures, SI 00502.240

• Indigence Exception to Sponsor Deeming (New Version Sponsor Deeming Cases), SI 00502.280